Date: 04-15-2015

Case Style: Tyler Turner v. State of Oregon

Case Number: A151193

Judge: Sercombe

Court: California Court of Appeals on appeal from the Circuit Court, Marion County

Plaintiff's Attorney: Gene Hallman argued the cause for appellant Tyler
Turner. With him on the briefs were Hallman Law Office,
Keith Dozier, and Paulson & Coletti.

Defendant's Attorney: Tom Christ argued the cause for appellant Carol
Colip. With him on the briefs were Julie Smith and
Cosgrave Vergeer Kester LLP.

Cecil A. Reniche-Smith, Senior Assistant Attorney
General, argued the cause for respondent State of Oregon.
With her on the brief were Ellen F. Rosenblum, Attorney
General, and Anna M. Joyce, Solicitor General.

Janet Schroer argued the cause for respondents City
of Depoe Bay and Lincoln County. With her on the brief were
Marjorie Speirs and Hart Wagner LLP.

Description: Judgment in favor of the State of Oregon and City of
Depoe Bay reversed and remanded; otherwise affirmed.
As plaintiff was travelling north on State Highway 101 in the City of Depoe
Bay, his motorcycle collided with defendant Colip’s automobile, which had
entered the highway from the east on a road owned by Lincoln County. Plaintiff
was severely injured in the accident and, more than two years later, brought a
personal injury action against Colip, as well as the state, the county, and the city
(the governmental entities), seeking damages for his injuries. Plaintiff alleged
that Colip operated her vehicle negligently and that the governmental entities
negligently designed and maintained the intersection and both roadways. Colip
brought cross-claims for contribution against the governmental entities. The governmental
entities moved for summary judgment against plaintiff and Colip. The
trial court entered a limited judgment in their favor, concluding that plaintiff’s
claims against the governmental entities were time-barred under ORS 30.275(9),
the applicable statute of limitations in the Oregon Tort Claims Act, ORS 30.260
to 30.300, and that the governmental entities were immune from liability under
ORS 30.265(6)(c). Held: The trial court did not err in entering judgment in favor
of the county on the grounds of discretionary immunity under ORS 30.265(6)
(c). However, issues of fact on the accrual of the period of limitations and the
existence or extent of any discretionary immunity preclude entry of summary
judgment in favor of the state and the city.
Judgment in favor of the State of Oregon and City of Depoe Bay reversed and
remanded; otherwise affirmed.
Cite as 270 Or App 353 (2015) 355
SERCOMBE, P. J.
As plaintiff was travelling north on State Highway
101 in the City of Depoe Bay, his motorcycle collided with
defendant Colip’s automobile, which had entered the highway
from the east on a road owned by Lincoln County. Plaintiff
was severely injured in the accident and, more than two
years later, brought a personal injury action against Colip,
as well as the state, the county, and the city (the governmental
entities), seeking damages for his injuries. Plaintiff
alleged that Colip operated her vehicle negligently and that
the governmental entities negligently designed and maintained
the intersection and both roadways. Colip brought
cross-claims for contribution against the governmental
entities.
The governmental entities moved for summary
judgment against plaintiff and Colip. The trial court entered
a limited judgment in their favor, concluding that plaintiff’s
claims against the governmental entities were time-barred
under ORS 30.275(9), the applicable statute of limitations in
the Oregon Tort Claims Act (OTCA), ORS 30.260 to 30.300,
and that the governmental entities were immune from liability
under ORS 30.265(6)(c). We conclude that the trial
court did not err in entering judgment in favor of the county
on the grounds of discretionary immunity under ORS
30.265(6)(c). However, issues of fact on the accrual of the
period of limitations and the existence or extent of any discretionary
immunity preclude entry of summary judgment
in favor of the state and the city. Accordingly, we affirm the
limited judgment in part, and reverse in part.
Our standard of review is well known: Summary
judgment is appropriate if there is no genuine issue of material
fact for trial, and the moving party is entitled to judgment
as a matter of law. ORCP 47 C; Brehm v. Caterpillar,
Inc., 235 Or App 274, 278, 231 P3d 797, rev den, 349 Or 245
(2010). When reviewing a grant of summary judgment, we
view the facts in the light most favorable to the nonmoving
parties—in this case, plaintiff and Colip. Jones v. General
Motors Corp., 325 Or 404, 408, 939 P2d 608 (1997). We set
out the facts consistent with that standard of review.
356 Turner v. Dept. of Transportation
BACKGROUND
The accident occurred on June 27, 2008; plaintiff
was hospitalized and heavily medicated for several weeks.
On July 9, 2008, plaintiff’s parents met with an attorney on
his behalf, and plaintiff signed a retainer on July 23. That
attorney investigated the accident and sent a tort claim
notice on July 31, 2008, to each of the governmental entities.1
The notice provided that “[t]he facts giving rise to [plaintiff’s]
claim are that on June 27, 2008, he was injured in an
automobile/motorcycle collision. The incident took place on
Highway 101 and Collins Street in Depoe Bay, Oregon. This
incident was caused by the dangerous condition and design
of this intersection.”
Plaintiff filed an amended complaint against all
defendants on July 6, 2010.2 Plaintiff alleged that he “did
not know, nor could he reasonably have known of the negligence
of defendants more than two years before the filing
of his Complaint.” He claimed that the state was negligent
in (1) failing to maintain sight distances for the highway
intersection and to “adopt mitigation measures” required by
administrative regulations, specifically to restrict left-turn
movements from Collins Street to Highway 101 and to post
warning signs, (2) permitting diagonal parking on the highway
with a speed limit of more than 25 miles per hour, contrary
to administrative regulations, and (3) “permitting and
maintaining” an unreasonably dangerous “intersection onto
a state highway” due to “impaired sight distances” and “a
failure to post adequate warning signs of a dangerous intersection
or impaired sight distances.” The amended complaint
further alleged that the county and city were negligent in
(1) “permitting and maintaining an intersection with
impaired sight distances,” (2) failing to restrict Collins Street
to prohibit a left turn onto Highway 101 or only “to one way
1 The OTCA requires that a personal injury claimant provide a notice of claim
to a public body within 180 days after the alleged loss or injury in order to maintain
an action against that public body. ORS 30.275(2)(b). Among other things,
the notice must include a “description of the time, place and circumstances giving
rise to the claim, so far as known to the claimant.” ORS 30.275(4)(b).
2 Plaintiff had earlier composed a complaint against only the governmental
entities. That complaint was filed with the court on July 6, 2010, and was not
served on the parties. The amended complaint that was filed and served is the
operative pleading that commenced the action.
Cite as 270 Or App 353 (2015) 357
traffic flowing away from Highway 101,” (3) “permitting and
installing” diagonal parking on Highway 101 that impaired
the views at the intersection, and (4) failing to post signs on
both streets “warning of the dangerous intersection.”
Plaintiff asserted that Colip was negligent in failing
to obey a traffic control device, yield the right of way to
plaintiff, and keep a reasonable lookout for oncoming traffic.
Colip answered the amended complaint and asserted crossclaims
for contribution against the governmental defendants.
Those cross-claims reiterated the negligence claims
in the amended complaint and added allegations that the
governmental entities were negligent in “failing to close
the intersection” and “failing to increase visibility for drivers
approaching and entering the intersection.” Because
those acts of negligence “made the intersection dangerous
for the traveling public,” Colip contended that the governmental
entities “should contribute to any amount awarded
to Plaintiff.”
The governmental entities sought summary judgment,
asserting that plaintiff’s claims were not viable for
two reasons. They first argued that plaintiff’s amended
complaint was untimely under ORS 30.275(9), pursuant
to which “an action arising from any act or omission of a
public body or an officer, employee or agent of a public body
within the scope of [the OTCA] shall be commenced within
two years after the alleged loss or injury.” Those entities
contended that plaintiff knew or should have known of any
tortious conduct on their part more than two years prior to
the filing of the amended complaint.
Alternatively, the governmental entities advocated
that they were immune from liability for the negligence
asserted in the amended complaint. The entities argued that
their decisions regarding the design and construction of the
intersection, parking, traffic controls, and signage, and failure
to modify those features were discretionary decisions
that were immune from liability under ORS 30.265(6)(c).
That statute provides, in part, that “[e]very public body and
its officers, employees and agents acting within the scope
of their employment or duties * * * are immune from liability
for * * * [a]ny claim based upon the performance of or
358 Turner v. Dept. of Transportation
the failure to exercise or perform a discretionary function or
duty, whether or not the discretion is abused.”
The court granted the governmental entities’
motions for summary judgment against plaintiff on the
ground that the claims were barred under the statute of
limitations in ORS 30.275(9). Later, when those defendants
sought summary judgment against Colip on the contribution
cross-claims, the court granted summary judgment
in their favor. The court concluded that the governmental
entities were immune from liability to plaintiff, and thereby
not liable to contribute to Colip for a share of any recovery
obtained against her, because of the discretionary immunity
provided under ORS 30.265(6)(c). Plaintiff and Colip
appeal from the limited judgment entered against them and
in favor of the governmental entities.
ACCRUAL OF THE PERIOD OF LIMITATIONS
We begin by evaluating whether plaintiff’s action
was “commenced within two years after the alleged loss or
injury” under ORS 30.275(9). The relevant legal principles
are well established. First, the OTCA statute of limitations
is tolled under the discovery rule until “a plaintiff has a reasonable
opportunity to discover his injury and the identity
of the party responsible for that injury.” Doe v. Lake Oswego
School District, 353 Or 321, 327, 297 P3d 1287 (2013) (internal
quotation marks omitted; emphasis in original). More
specifically, the term “injury” in the statute means that
which “ ‘formed the basis for an action, i.e., legally cognizable
harm’ ” and a “ ‘harm is legally cognizable if it is the result of
tortious conduct.’ ” Id. at 328 (quoting Gaston v. Parsons, 318
Or 247, 254-55, 864 P2d 1319 (1994)). Thus, a reasonable
plaintiff must discover “not only the conduct of the defendant,
but also * * * the tortious nature of that conduct.” Id. at
331. As noted, knowledge of tortious conduct includes knowledge
of “the probable identity of the tortfeasor.” Johnson v.
Mult. Co. Dept. Community of Justice, 344 Or 111, 118 n 2,
178 P3d 210 (2008).
In sum, “an ‘injury’ is discovered when a plaintiff
knows or should have known of the existence of three elements:
(1) harm; (2) causation; and (3) tortious conduct.”
Doe, 353 Or at 328. The statute of limitations begins to run
Cite as 270 Or App 353 (2015) 359
under ORS 30.275(9) “ ‘when the plaintiff knows or, in the
exercise of reasonable care, should have known facts that
would make a reasonable person aware of a substantial possibility
that each of the elements of a claim exists.’ ” Id. at
333 (quoting Kaseberg v. Davis Wright Tremaine, LLP, 351
Or 270, 278, 265 P3d 777 (2011)). “In applying that standard,
a court must consider the facts from the perspective
of a reasonable person in the circumstances of the plaintiff.”
Id.
Application of the discovery rule gives a plaintiff a
reasonable opportunity to become aware of his or her claim.
Gaston, 318 Or at 255-56. The point in time when an investigation
would have disclosed facts that made a reasonable
person aware of a substantial possibility of injury marks the
beginning of the limitations period—not the earlier point
in time when plaintiff first had a duty to investigate. The
Foster Group, Inc. v. City of Elgin, Oregon, 264 Or App 424,
432, 332 P3d 354 (2014). Generally speaking, the factual
determination of when a reasonable person would have been
aware of the substantial possibility of the elements of a claim
is a jury question. “Application of the discovery accrual rule
is a factual issue for the jury unless the only conclusion a
reasonable jury could reach is that plaintiff knew or should
have known the critical facts at a specified time and did not
file suit within the requisite time thereafter.” T. R. v. Boy
Scouts of America, 344 Or 282, 296, 181 P3d 758 (2008).
Oregon courts have held that mere knowledge
that governmental conduct caused harm is insufficient to
commence the period of limitations; the plaintiff must also
reasonably know the tortious nature of the governmental
conduct—that the conduct was negligent or intentionally
harmful. Thus, in DeNucci v. Henningsen, 248 Or App 59,
273 P3d 148 (2012), the plaintiff brought a false arrest claim
against a county. The plaintiff was arrested at the scene of
an accident and cited for interference with a firefighter or
emergency medical services provider on May 14, 2005. The
charges were later amended to include a charge of interfering
with a peace officer. The charges were dismissed at the
state’s motion on September 29, 2005. Plaintiff provided a
notice of tort claim to the county on March 24, 2006 (within
176 days after the charges were dismissed), and the county
360 Turner v. Dept. of Transportation
moved to dismiss for failure to provide the notice “within 180
days after the alleged loss or injury” under ORS 30.275(2)(b).
The county argued that the claim accrued when the plaintiff
was arrested; the plaintiff, on the other hand, argued that
the discovery rule applies to tort claim notices under the
OTCA, and that she did not know of an injury to her legally
protected interests—that the arrest was false—until the
charges were dismissed.
We noted that the notice period and the two-year
statute of limitations under the OTCA do not begin to run
until a plaintiff knows or reasonably should know of the
facts giving rise to a claim. 248 Or App at 69. We concluded
that there was
“no reason to conclude that a reasonable person would have
known that her arrest was unlawful on the day when it
took place. Under these circumstances, we cannot say, as
a matter of law, that plaintiff had a duty to investigate the
legality of her arrest immediately after she was arrested;
nor can we say, if she had such a duty, when an investigation
would have yielded facts that would have alerted a reasonable
person to a substantial possibility that the arrest
was unlawful. Therefore, the question of when plaintiff
knew or should have known facts indicating that her arrest
was unlawful must be answered by a jury.”
Id. at 69-70; see also Doe, 353 Or at 331 (fact issues as to
whether child “recognized or must be deemed to have recognized
[the offensive nature of a sexual battery] when the
touching occurred” precluded dismissal of OTCA claims
for battery under ORS 30.275(9)); Johnson, 344 Or at 113,
120-23 (knowledge of improper supervision by state of the
plaintiff’s assailant could not be imputed from the time that
the plaintiff knew the identity of her assailant or the time
that news reports about that supervision were available);
Worman v. Columbia County, 223 Or App 223, 230-31, 195
P3d 414 (2008) (the plaintiffs’ report of loss to state identifying
county as a possible party to herbicide spraying that
injured their bushes did “not establish, as a matter of law,
that the plaintiffs knew of a ‘substantial possibility’ that
the county was responsible for the damage to their property,
particularly considering the evidence in the summary
judgment record that the county previously denied
Cite as 270 Or App 353 (2015) 361
spraying the plaintiffs’ area and keeping any records of such
spraying”).
The governmental entities contend that, on the day
of the accident, plaintiff was aware that there was a substantial
possibility that the harm to him was caused by their
tortious conduct. They infer that awareness from the physical
arrangement of the roads and the obvious circumstances
of the accident itself. The entities contend that we drew a
similar inference in Mann v. Dept. of Transportation, 114 Or
App 562, 836 P2d 1353 (1992), rev’d on other grounds, 315 Or
642, 847 P2d 856, on remand, 122 Or App 628, 856 P2d 1055
(1993), and that plaintiff’s inferred knowledge compels the
conclusion that their tortious conduct was discoverable, as a
matter of law, at the time of the collision.
In Mann, the plaintiff’s wife and child were traveling
on an icy state highway when an oncoming vehicle
crossed the center line and collided with their vehicle. 114
Or App at 564. The plaintiff’s wife was killed and his child
was injured in the accident. The plaintiff investigated the
cause of the accident and was informed by state employees
that the highway had been sanded. Nearly three years
later, the plaintiff discovered that the highway had not been
sanded. Shortly after the discovery, he filed wrongful death
and negligence claims against the state on behalf of his
child and his wife’s estate, alleging that the highway was
icy and unsafe and that the state had negligently failed to
warn motorists of that unsafe condition, place traffic barriers
between the lanes of travel, and adequately sand the
highway. Id. The trial court granted the state’s motion to
dismiss for failing to commence an action within the OTCA’s
statute of limitations.
In considering the plaintiff’s appeal, we concluded
that, on the date of the accident, the “plaintiff had sufficient
information to raise an issue of fact on each element of his
wrongful death claim” and that his claim accrued on that
date. 114 Or App at 565. Specifically, we noted:
“Regardless of defendant’s misrepresentation, plaintiff
was aware, on the date of the accident, that road conditions
had been hazardous. He also knew, or should have
known, that the state was responsible for maintaining the
362 Turner v. Dept. of Transportation
highway in question. It was apparent that the state had not
constructed a central barrier and had not provided signs
to warn motorists of potentially dangerous driving conditions.
Those facts provided a sufficient basis for an action
against the state. Plaintiff knew that his wife had been
killed, that her death could be attributed to defendant’s
acts and that defendant arguably had been negligent in at
least two respects.”
Id. (emphasis in original).
In Mann, we inferred the plaintiff’s knowledge of
a substantial possibility that the harm was caused by an
identified person’s tortious conduct based on the immediately
apparent hazard of the road conditions as well as the
known identity of the entity responsible for mitigating that
hazard. Here, in contrast, the dangerousness of the road
conditions was not obvious as a matter of law. The vision
obstruction by parked vehicles on Highway 101 may or may
not have been hazardous depending upon a number of factors,
including how the allowed speed for vehicles traveling
on the highway and the allowed turning movements from
Collins Street affected the obstruction. Nor was it apparent
which entity was responsible for those conditions. The
summary judgment record is not clear regarding whether
the city, the county, or the state, or all three governmental
entities, were responsible for assessing or mitigating safety
issues with the parking design or traffic controls and movement
at the intersection.
Thus, plaintiff’s knowledge of the collision and the
resulting harm (even with any imputed knowledge of who
owned the roads in question) does not establish conclusively
that plaintiff knew or should have known at that time the
tortious conduct of the governmental entities and that they
were negligent in the design and construction of the intersection,
the parking, traffic controls, and signage, and in any
failure to later modify those features. Plaintiff would need
to reasonably have known, at the very least, that the accident
was caused by Colip’s inability to detect northbound
traffic on Highway 101 until she was in the travel lane for
that traffic, and that there was a substantial possibility
that that vision obstruction, in turn, was caused or not remedied
by particular “tortious conduct,” that is, unreasonable
Cite as 270 Or App 353 (2015) 363
actions and inactions of the governmental entities.3 We cannot
say, as a matter of law, that a reasonable plaintiff would
have known of those facts no later than July 6, 2008—two
years before the filing of the amended complaint, and nine
days after the accident. Therefore, when a reasonable plaintiff
would have discovered the relevant actions or inactions
of the governmental entities is a question for the jury. The
trial court erred in concluding otherwise and granting the
governmental defendants’ motion for summary judgment
against plaintiff.
DISCRETIONARY IMMUNITY
The facts and the law with respect to any discretionary
immunity of the governmental entities are more complicated.
To reiterate, ORS 30.265(6)(c) provides, in part:
“Every public body and its officers, employees and agents
acting within the scope of their employment or duties * * *
are immune from liability for:
“* * * * *
“(c) Any claim based upon the performance of or the failure
to exercise or perform a discretionary function or duty,
whether or not the discretion is abused.”
(Emphases added.)
We summarized the core principles applied in determining
the existence of discretionary immunity in Ramirez
v. Hawaii T & S Enterprises, Inc., 179 Or App 416, 419, 39
P3d 931, rev den, 335 Or 114 (2002):
“One of the more succinct formulations of the distinction
between immune and nonimmune actions under the doctrine
of discretionary immunity is this: Discretionary
immunity applies to actions that embody ‘a choice among
alternative public policies by persons to whom responsibility
for such policies have been delegated.’ Miller v. Grants
Pass Irrigation District, 297 Or 312, 316, 686 P2d 324
(1984). This statement identifies three criteria that a government
function or duty must meet in order to qualify for
discretionary immunity. It must be the result of a choice,
3 Indeed, a reasonable person would ordinarily assume that a governmental
entity acts reasonably in constructing and maintaining a public facility. See OEC
311(1)(j) (presumption that “[o]fficial duty has been regularly performed”).
364 Turner v. Dept. of Transportation
that is, the exercise of judgment; that choice must involve
public policy, as opposed to the routine day-to-day activities
of public officials; and the public policy choice must be
exercised by a body or person that has, either directly or by
delegation, the responsibility or authority to make it.”
(Emphases in original.)
The statute does not protect a government’s failure
to take action when there is a duty to do so. As the court held
in Hughes v. Wilson, 345 Or 491, 496, 199 P3d 305 (2008),
“if the law requires a government to exercise due care, then
ORS 30.265 does not immunize its decision not to exercise
care at all. When a public body owes a duty of care, that
body has discretion in choosing the means by which it carries
out that duty. Little v. Wimmer, 303 Or 580, 589, 739
P2d 564 (1987); Miller v. Grants Pass Irr. Dist., 297 Or 312,
320, 686 P2d 324 (1984). But ‘[t]he range of permissible
choices does not * * * include the choice of not exercising
care.’ Mosley [v. Portland School Dist. No. 1J, 315 Or 85, 92,
843 P2d 415 (1992)].”
Hughes also emphasized that a government’s choice
must be implemented for an immunity to attach: “Merely
weighing costs and benefits and making a decision, even if
that decision might qualify as a permissible discretionary
decision, is not sufficient to entitle a government to immunity.
The government must also demonstrate that it took the
action necessary to effectuate that decision.” 345 Or at 501.
In the proceedings below, the governmental entities
argued that their actions and inactions that were claimed to
be negligent in the amended complaint were discretionary
choices that are entitled to immunity under ORS 30.265(6)(c).
The amended complaint and cross-claims allege similar
acts of negligence against the state, the county and the
city (pertaining to not changing traffic control and movements
on Collins Street, failing to change the parking on
the highway, not posting warning signs, and failing to make
physical changes to the intersection itself). Each of the governmental
entities, then, had the burden in the summary
judgment proceedings to establish that a responsible official
or agency made permissible discretionary decisions to
continue and not change the design and characteristics of
Cite as 270 Or App 353 (2015) 365
the intersection itself, the Highway 101 parking, the content
and placement of warning signs, and the control of traffic to
and from Collins Street.4 See Vokoun v. City of Lake Oswego,
335 Or 19, 31, 56 P3d 396 (2002) (“The burden is on the governmental
defendant to establish its immunity.”).
The state first argues that all improvements or
changes to Highway 101 and the Collins Street approach
in the years before the accident were considered, but not
funded, in the State of Oregon Statewide Transportation
Improvement Program (STIP), and the adoption of the STIP
immunizes the state from liability for the negligence alleged
in the amended complaint and cross-claims. The summary
judgment record does not bear out the state’s assertion.
The STIP is a statewide capital improvement plan
that is adopted by the Oregon Transportation Commission.
The plan determines the prioritization, funding, and
scheduling of state transportation projects and programs
over a four-year period.5 Some of the projects on the state
plan are selected from local transportation system plans.
Projects from the STIP are then included in the Highway
Construction Plan, which is submitted on a biennial basis to
the Legislative Assembly as part of the Governor’s budget,
and which includes “a list of projects from the STIP that the
department intends to work on in the biennium for which
the budget is submitted.” ORS 184.658.
The text of the applicable STIP was not part of
the summary judgment record. An ODOT traffic engineer
attested, however, that the agency prioritizes transportation
safety improvements, including improving the line of
4 The amended complaint and cross-claims charge negligence in “permitting”
the parking and the intersection conditions. We read those allegations to pertain
to the continuation of or failure to change those conditions, and not to negligence
in the original design of the parking and streets. Generally speaking, state and
local government agencies have a discretionary immunity under the OTCA for
considered actions in the planning and design of public improvements. Garrison
v. Deschutes County, 334 Or 264, 48 P3d 807 (2002) (discretionary immunity for
a decision by county employees to design a waste transfer station without a particular
fall protection device); Smith v. Cooper, 256 Or 485, 511, 475 P2d 78 (1970)
(“We hold that state employees are generally immune from liability for alleged
negligence in planning and designing highways.”).
5 The STIP process is described at http://www.oregon.gov/ODOT/TD/STIP/
Pages/STIPDocs.aspx (last accessed Mar 7, 2015).
366 Turner v. Dept. of Transportation
sight distances at intersections, under a Safety Priority
Index System (SPIS), i.e., “primarily on crash history as
reflected in SPIS safety statistics and the projected safety
benefit that a project will have on that crash history.”
Specifically, according to the engineer, “it is ODOT policy
to include the worst 5 percent SPIS-rated accident sites,
as well as other high accident rated sites based on a cost/
benefit analysis, in a list of potential highway safety construction
improvement projects” in the STIP safety budget.
Accordingly, the Collins Street/Highway 101 intersection
was “not listed on the top 5 percent of crash sites” at the
time of the accident in this case, nor was it considered to
be “a high accident site.” According to the state, for that
reason alone, the state did not consider or authorize any
improvement to Highway 101 at or near the Collins Street
intersection in the STIP.6
In Ramirez, we concluded that, “if a city’s decision
not to build a particular project causes property damage,
the city is immune from liability for the damage if its inaction
resulted from adoption of a ‘prioritized * * * list of capital
improvement projects’ that did not include the one that
would have prevented the damage.” 179 Or App at 419 (quoting
Vokoun v. City of Lake Oswego, 169 Or App 31, 42-43,
7 P3d 608 (2000), rev’d, 335 Or 19, 56 P3d 396 (2002), on
remand, 189 Or App 499, 76 P3d 677 (2003)). The state
relies upon that principle in advocating for a discretionary
immunity from the adoption of the STIP.
The Supreme Court modified our discretionary
immunity analysis in Vokoun in ways that are instructive
6 The engineer noted, however, that lack of state funding would not prevent the city or
the county from applying to improve the road intersection with their own funds:
“While the State did not fund new safety construction at this intersection
before June 27, 2008, if Lincoln County or the City of Depoe Bay had the
money to do so, they could have chosen to build a project on the state highway
right-of-way at their road connection of Collins Street with Highway
101 within the city or county limits. If they had done so, any such county or
city project plans would have had to be reviewed by ODOT to ensure compliance
with design standards. With proper submissions and approval, the
local governments could have received a permit from ODOT to construct
or reconstruct the intersection at Collins Street and Highway 101. Neither
Lincoln County nor the City of Depoe Bay applied for a permit for such a
project.”
Cite as 270 Or App 353 (2015) 367
here. In Vokoun, the plaintiffs claimed that the city was
negligent in failing to repair and maintain a storm drainage
channel and that the negligence caused a landslide that
injured their homesite. 335 Or at 23. The city argued that it
had a discretionary immunity from liability for that negligence
because of the adoption of a capital improvement plan
that did not include the storm drainage repair. We agreed
with the city. The Supreme Court did not. Id. at 33. The court
noted that the city did not explicitly “consider whether to
place improvement of the storm drain and drainage course
at issue in this case in the capital improvement plan.” Id. at
22. Just as importantly,
“city policy permitted the city to adopt a supplemental
budget to pay for repairs costing more than $25,000. The
city presented no evidence that the city council considered
whether to adopt a supplemental budget to repair the erosion
that the outfall pipe at issue in this case had caused.
On this record, we conclude that the fact that the city had
adopted a capital improvements plan that did not include
purchasing and improving the drainage course does not
establish the city’s immunity from plaintiff’s negligence
claim.”
Id. at 33.
Similarly here, the record does not show that all
of the Highway 101 modifications in question were considered
and rejected in the STIP process or that other available
processes were used to decide to not make those changes.
The record does not establish that an omission of a STIP
listing based on the safety priority index—the only policy
choice identified by the state as supporting an immunity—
is the exclusive mechanism to consider and not authorize a
state road improvement, either in the STIP or otherwise.
According to the “ODOT Highway Safety Program Guide,”
projects can qualify to be listed in the STIP because of
their SPIS rating or a “Positive Benefit/Cost Ratio of 1.0”
or because of a “risk narrative,” meaning “projects where
crash trends may not be evident.” Apart from the STIP, some
highway safety construction projects that are immediately
necessary can be considered and funded through ODOT’s
“Quick Fix” program. Furthermore, the ODOT engineer
testified that, notwithstanding the failure to list a project
368 Turner v. Dept. of Transportation
on the STIP, ODOT could still make a decision “[o]f minor
sorts” to construct a highway safety improvement.7
Similarly, there was no evidence that the state
deliberately chose not to employ traffic controls on Highway
101—to reduce the speed limit, limit traffic movement from
Collins Street, or post warning signs—because of the adoption
and implementation of the STIP and highway budget
or any other policy choice. Therefore, the record does not
demonstrate whether the failure to improve the highway or
change traffic controls were choices made by the state, much
less whether those choices necessarily resulted from policy
deliberations of the state, so as to qualify those choices as
immune from liability under ORS 30.265(6)(c). The state
failed to demonstrate the existence of a discretionary immunity
for the negligent inactions attributed to the state in the
amended complaint.
As to a discretionary immunity for the city or the
county, the amended complaint charges that the city and
county were negligent in failing to modify the intersection
to improve sight distances for vehicles entering the intersection,
failing to restrict traffic on Collins Street to avoid hazardous
movements within the intersection, failing to post
warning signs on both streets, and not modifying the design
of parking on Highway 101 or otherwise increasing the visibility
for drivers approaching and entering the intersection.
The city argues that its adoption of a transportation system
plan and a refinement plan for the downtown area were policy
choices that immunized its alleged inactions from liability.
Alternatively, the city reiterates an argument made
below that it could not be negligent in failing to take those
actions because it had no duty to effect any change since
it did not own or control either street. See Outdoor Media
Dimensions Inc. v. State of Oregon, 331 Or 634, 659-60, 20
P3d 180 (2001) (explaining circumstances in which we will
affirm the trial court on an alternative basis). We address
the city’s discretionary immunity claim first, before turning
7 The Highway 101/Collins Street intersection was improved by the state to
remedy the vision obstruction shortly after the accident in September 2008. It
could be inferred from the timing of the improvement that its funding was not
part of the earlier-adopted STIP and that the adoption of the STIP did not preclude
the state from remedying the dangerous intersection.
Cite as 270 Or App 353 (2015) 369
to the city’s argument that it was not negligent as a matter
of law.
Sometime around 2001, the city adopted the 2000-
01 City of Depoe Bay Transportation System Plan (TSP) to
satisfy state land use planning requirements.8 The city’s
2000-01 TSP found that the “initial key traffic operational
issues in Depoe Bay appear to be the parking, RV parking,
sight distances and traffic operations at the intersections Bay
and Collins, and pedestrian traffic crossing Hwy. 101.” The
TSP noted that, “with parking full along Hwy. 101, a driver’s
line of sight from the minor streets is restricted.” The plan
proposed to “[i]mprove connections to Hwy. 101, i.e. Collins
St. Clarke St., Austin St.” Those improvements were given
a “medium” priority with costs estimated to be $400,000.
The potential funding for the project was local taxes,
assessments, fees, and trust funds, together with “ODOT
Opportunity Grant Program,” “Enhancement Program”
and “ODOT STIP.” The city superintendent further attested
that the city’s TSP recognized “that diagonal parking [on
Highway 101] can be unsafe and could create visibility problems,”
but that the city council did not prioritize any change
in that parking as part of the TSP, and elected to maintain
that parking since then “on each occasion when the issue
8 Both the city and county were required by OAR 660-012-0015(3) to adopt a
TSP as part of the locality’s compliance with statewide planning goal 12 (transportation),
OAR 660-012-0000(1). Each locality was required to coordinate its
TSP with the transportation planning of the other locality and the state. OAR
660-012-0015(5). Under OAR 660-012-0020(2), a TSP must contain a “determination
of transportation needs” as well as a “road plan for a system of arterials
and collectors and standards for the layout of local streets” that address, among
other things, “[c]onnections to existing or planned streets, including arterials
and collectors.” A TSP also must contain a “system of planned transportation
facilities, services and major improvements,” including a description of the
improvement and identification of the provider of each planned transportation
facility or service. OAR 660-012-0020(3)(b) - (d). The selection of transportation
system alternatives must be based on meeting “the identified transportation
needs in a safe manner and at a reasonable cost with available technology.” OAR
660-012-0035(1). A TSP is required to contain a financing program, that includes
a list of planned facilities and improvements, a general estimate of timing of the
improvement, a determination of rough cost estimates for the projects, and (for
some cities) “policies to guide selection of transportation facility and improvement
projects for funding in the short term.” OAR 660-012-0040(2). A financing
program is only required, however, for urban areas containing a population of
greater than 2,500, OAR 660-012-0040(1), which does not include the City of
Depoe Bay. See Oregon Blue Book 248 (2015-2016) (listing 2000 population of City
of Depoe Bay as 1,174 persons).
370 Turner v. Dept. of Transportation
has come up” because of local business opposition to removal
of any parking spaces.
Thus, the plan, in fact, recognized the existence of
a hazardous intersection, and proposed a reconstruction of
the intersection to mitigate that hazard. The TSP did not,
however, determine when redevelopment of the intersection
would occur, the city’s role in financing or constructing that
improvement, or direct any city action or inaction in those
regards. As noted, “[m]erely weighing costs and benefits and
making a decision,” here, to mitigate a hazardous intersection,
does not create a discretionary immunity; “[t]he government
must also demonstrate that it took the action necessary
to effectuate that decision.” Hughes, 345 Or at 501.
The city did not present evidence that it took actions to avoid
or delay the improvement project as part of implementing
the TSP. Therefore, the adoption of the TSP by itself did not
immunize the city’s failure to take action to initiate or construct
improvements or changes to the streets.
For the same reasons, immunity does not attach
because of other city actions that assessed the need to improve
the intersection or identified the necessary change. In 2005,
the city adopted a Depoe Bay Highway 101/Downtown
Refinement Plan that included a capital improvement and
financing plan. It listed as a project the maintenance of
Collins Street as a two-way street with right-turn only onto
Highway 101. On June 21, 2005, the city council approved a
motion to maintain Collins Street in that manner. Neither
of those actions determined whether or when the city should
take steps to mitigate the intersection hazard. For that reason,
the city’s negligent inactions alleged in the amended
complaint were not the necessary product of the adoption
of the refinement plan or the motion, and, therefore, were
insufficient to qualify for a discretionary immunity under
ORS 30.265(6)(c).
The county, on the other hand, did prove that there
were no material issues of fact on the existence of a discretionary
immunity from liability for its alleged negligent
inactions in failing to modify the intersection to improve
sight distances for vehicles entering the intersection, failing
to restrict traffic on Collins Street to avoid hazardous
Cite as 270 Or App 353 (2015) 371
movements within the intersection, and failing to post
warning signs on Collins Street, and that it was entitled
to judgment as a matter of law.9 The county based its claim
of immunity on choices made by its public works director,
Buisman, who, under his delegated authority to establish
program priorities and resource allocation, had authorized a
“safety audit” of all county roads in 2006. The auditor, assistant
public works director Cox, evaluated “road safety characteristics
such as appropriate signage, pavement markings,
pavement edge drop-offs, unexpected sharp curves, limited
sight distance, and general road conditions that might affect
control of a vehicle.” According to Buisman, the purpose of
the audit was to “advise me as to any areas of concern so
that with our limited County road budget, we could address
those roads that needed some attention.” Based on the information
provided to Buisman by Cox, Collins Street was identified
as “okay” and “requiring no action.” Buisman further
said that, “[i]n the allocation of our limited funds, this Road
Safety Audit by Mr. Cox was used internally by my office to
prioritize projects” and that improvements to Collins Street
were not undertaken because of its low priority.
Thus, the responsible county decision maker, Cox,
through the safety audit, made discretionary choices about
the priority of transportation improvements of the types at
issue (road improvements, signage, other traffic controls),
and that policy was implemented by a person with authority
to do so, Buisman, through an annual allocation of road
construction and maintenance funds. Those facts, which are
uncontradicted in the summary judgment record, satisfy the
tests for a discretionary immunity outlined in Hughes and
Ramirez. The court did not err in granting summary judgment
in favor of the county and against plaintiff and Colip.
Finally, on the city’s alternative argument on its lack
of liability, the city has not shown that it was not negligent
as a matter of law because it had no duty or ability to maintain
or improve the streets in question. The city claims that
it had no duty of due care because it was not the owner or
responsible road authority for Highway 101 or Collins Street.
9 There was no evidence that the county had any role in the designation of
parking along Highway 101 or the construction of signage on that highway.
372 Turner v. Dept. of Transportation
We rejected that “not my street” contention in John v. City
of Gresham, 214 Or App 305, 165 P3d 1177 (2007), rev dismissed
as improvidently allowed, 344 Or 581 (2008). There, a
pedestrian, who was injured when crossing a county road in
a crosswalk, alleged that a city was negligent in the design
of the crosswalk. The city argued that it could not be liable
for injuries that occurred on land that it did not own. We
concluded that, in light of the city’s role in the design of the
improvement, “the fact that the city does not own the street
on which the accident occurred does not necessarily mean,
as a matter of law, that it cannot be liable for the accident.”
Id. at 317. Put another way, a city’s responsibility to make
street travel safe may depend upon factors beyond ownership
of the street itself. Given the city’s actions here in planning
and coordinating needed improvements to the streets with
the state and county in the TSP, affecting the parking along
Highway 101, and adopting desirable traffic controls for
Collins Street, we cannot say as a matter of law that the city
has no responsibility for the safe conditions of the streets.
Relatedly, a lack of ownership of the streets does
not, as a matter of fact, preclude the city from affecting their
maintenance or improvement. As noted, the state traffic
engineer attested that the city “could have chosen to build a
project on the state highway right-of-way at their road connection
of Collins Street with Highway 101 within the city
or county limits * * * [and] received a permit from ODOT” to
do so. The city could have adopted a financing plan, as part
of the TSP, to “guide selection of transportation facility and
improvement projects for funding in the short-term.” OAR
660-012-0040(2). The city admits that the council elected
to maintain the parking on Highway 101 “on each occasion
when the issue has come up.” See also ORS 810.010 (designating
an incorporated city’s governing body as “the road
authority” for all streets “other than state highways, within
the boundaries of the incorporated city”). Thus, the city
was not free from negligence, as a matter of law, because of
county and state ownership of the streets. The trial court
erred in granting summary judgment in favor of the city.

Outcome: Judgment in favor of the State of Oregon and City of
Depoe Bay reversed and remanded; otherwise affirmed.

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Defendant's Experts:

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